In major California social media trial, jurors weigh ‘good business’ vs. ‘treachery’
By Charles Mitchell
The issue is whether modern marketing science has crossed over into mind control.
Since their inception, the internet and social media platforms have operated without serious legal worries. In California, a jury is to decide whether two companies are tortuously and intentionally addicting customers, especially young customers, without their customers’ knowledge or consent.
Parallels to Big Government’s big wrestling match with Big Tobacco in the 1990s are clear. The actual lawsuit even says so: "Borrowing heavily from the behavioral and neurobiological techniques … exploited by the cigarette industry, defendants deliberately embedded in their products an array of design features aimed at maximizing youth engagement to drive advertising revenue."
It will be a long time before the questions in the case are ultimately resolved, but a decision – if one is reached in the trial that started Jan. 26 – could lead to big changes in the worlds of online entertainment, information and commerce. (The “if” relates to the fact that a bevy of internet companies were initially sued and all except Meta (Facebook and Instagram) and Google (YouTube) settled in the days leading to jury selection. Parties in civil cases can make a deal at any time, even after testimony ends.)
The case began with one woman, known as K.G.M., and has since been joined by thousands of plaintiffs. The issues are also raised in a federal case. K.G.M.’s claim says she first experienced YouTube, the free website which makes no content but allows people to upload videos, when she was 6 years old. K.G.M. does not allege any specific physical or financial harm. Instead, consent is the key factor and K.G.M. says she was lured in and has been exploited for commercial purposes through the years since.
It is certainly no secret that companies, shortly after discovering the business potential of the internet, started gathering “digital profiles” on their customers. In the same way that small-town mom and pop shops prosper by knowing their customers, the digital world gathers information – lots of information – about specific consumers. The difference is scale. The British firm Cambridge Analytica once boasted it had 5,000 data points on every internet user around the globe. Back in 2023, YouTube reported 2 billion logged-in users a month and an inventory of 800 million videos. At any given time, the streaming service Netflix “stocks” thousands of shows and movies. Amazon offers hundreds of thousands of products. Digital merchants quickly realized it would be way too cumbersome to serve their customers unless software was developed to “know” enough to ante up products that would match a customer’s interests based on a customer’s shopping and browsing history.
K.G.M.’s case doesn’t question whether sellers of goods and services should be allowed to have some information. Again, it’s a matter of tactics and scale. Her complaint is with deception devised to derive profits with little-to-no respect for her permission or privacy.
The defense attorneys have a couple of responses. One is there’s no empirical test for what constitutes addiction. Another is whether the platforms caused addiction or merely influenced it. (The difference between influence and cause is a big one in law. For example, an older brother challenges a younger brother to eat a rotten plum. The younger brother eats the plum and becomes sick. Did the older brother cause the illness or influence it?)
With tobacco, it was shown that cigarette makers (1) knew their product could be harmful to health and (2) intentionally used ingredients to reinforce smoking as either a habit or addiction. Hefty fines, limits on advertising and warning labels were devised as the remedy. Today, people who smoke are aware of the risks and make a personal choice. It could be said that smokers consent to addiction, although many believe addiction – in its strongest form – describes something that cannot be overcome even by the strong-willed. The power of choice is lost.
K.G.M.’s accusations did not come as a shock to online enterprises. There has been a growing sense that super-powerful algorithms were crossing lines into what people consider personal. Ten full years ago, Amazon sought a patent for a process that would know what a customer would order before the order was placed – so shipping could begin. Due to news laws in some states and foresight in others, companies are ratcheting up information about data gathering and giving customers choices. “Ask app not to track” and “accept cookies” are examples.
Doing this tracks the tobacco business: Inform people, and let them choose.
Perhaps that’s the logical end for K.G.M.’s case.
——————————————————————————
Charles Mitchell is an associate professor in the School of Journalism and New Media at the University of Mississippi and a member of the Overby Center panel of experts.
